September 7, 2021
Child custody is one of the most contentious issues as a divorce takes place. It refers to the care, control, and maintenance of a child that a court may grant to one of the parents during a divorce or separation case. In the case of a divorce involving children, having a thorough grasp of child custody information is crucial, as it ensures that the desired custody is granted.
In the past, international or cross-national weddings in China and with Chinese people have been steadily increasing, and as a result, international or cross-border divorces have also been on the rise in China.
The procedure for obtaining a divorce under Chinese marital law is covered under the People's Republic of China's Marriage Law of 2001 and the General Principles of Civil Law governing child custody legislation.
Child Custody Arrangements
The parents might pick from the following forms of child custody arrangements depending on the circumstances of their divorce:
Joint custody
A child custody agreement in which both parents share decision-making and responsibility for physical care of the child is known as joint custody. Joint custody arrangements are frequently created during divorce procedures, and they are defined by a court order at that time.
Shared custody
After a divorce or separation, shared custody is a child custody agreement in which both parents share the duty of raising their child, with equal or nearly equal parenting time.
Split custody
Split custody refers to a custody arrangement in which the children of divorced or separated parents do not reside together. By definition, split custody can only take place in a family with siblings.
Custody of Children After a Divorce
The usual rule for courts when awarding custody to divorced parents is to consider who would provide the best financial and other support (e.g. grandparents available to help).
In practice, courts prefer to create the least disruption to the child's life taking into account who the child has been living with recently. However, separated parents knowing that courts have such preference, have sometimes fought extra aggressively for initial physical custody of the child as divorce and custody disputes are potentially litigated (leading to some quite ugly situations in extreme cases).
Therefore, before initiating a divorce lawsuit including a struggle over child custody, it is best for the parent to create a positive and stable status quo for the parent's involvement in the child's life.
A court considers the following elements while deciding whether or not to grant custody:
--The parents' mental and physical well-being--If the family has ever experienced domestic violence--What the child wants--Which parent has been the child's primary caregiver?--Each parent's work schedules and child-care arrangements--Capacity to meet the child's special requirements, if any.
--The child's relationships with his or her brothers, sisters, and other family members.
Custody and Child Support
According to the Chinese Marriage Law, regardless of which parent gets custody of the children after the divorce, both parents have the "right and obligation" to educate the children.
If the child is an infant (under the age of 2) at the time of the divorce, the mother will almost certainly be granted custody. If the child is older than two years old and the parents cannot agree on custody, the authorities will award custody to one of the parents.
The parent who is not given custody of the kid will be responsible for expenditures linked to the child's daily care and education. Child support is calculated based on the parents' income and often amounts to 20-30% of annual income. When a child reaches the age of 18, the requirement to pay child support ends.
Child Visitation Rights After Losing Custody
When the parents are from two different countries, parent visitation rights are always a challenge, and much depends on the parents' post-divorce chemistry.
This is largely because, as a practical matter, Chinese courts are frequently unable or unwilling to actively assist with enforcing visitation rights after a divorce.
Conclusion
Understanding all areas of child custody law and practice will considerably improve the chances of getting the custody you want. It is advisable for a matter as serious as this that you see an attorney to ensure that you are best prepared and all of your concerns are addressed. An attorney can assist both negotiating for the kind of custody arrangement you get (with your spouse and at court) as well as the details of a Parental Agreement that will document the arrangement for both parties.
Please contact us (inquiries@chinalawsolutions.com) to get in touch with an experienced lawyer who can assist with child custody matters in China. All inquiries are treated as confidential.